The preservation of liberty requires that the three great departments of power should be separate and distinct. James Madison, Federalist Papers, No. 47.
There was celebration within George W. Bush’s Republican base when he managed to appoint two justices to the Supreme Court, Samuel Alito and John Roberts, with the latter also becoming chief justice. At last—it was also widely assumed by Bush’s opponents—whatever the ultimate failures of his administration, the high court had moved firmly to the right for some time to come.
This grim prospect may well prove true, but two recent events at the Supreme Court indicate strongly that regarding the most dangerous thrust of Bush’s reign, his continuing, unprecedented expansion of his powers as commander in chief, the court is finally and crucially alarmed.
During the March 28 oral arguments in Hamdan v. Rumsfeld, there were two main issues: the constitutional legitimacy of the military commissions at Guantánamo, created solely by the president, and whether the Supreme Court itself had the right to even hear the case.
In a revealing exchange, Justice Ruth Bader Ginsburg said to Solicitor General Paul Clement: “I thought it was the government position that these enemy combatants do not have any rights under the Constitution and laws of the United States.”
“That is true, Justice Ginsburg,” the solicitor general said. The unmistakable subtext of the government’s answer was: “So why is this court interfering with the inherent constitutional powers of the commander in chief in the war on terrorism? Get lost!”
This dismissal of the Supreme Court’s jurisdiction by the administration angered at least five of the justices in that hearing during a series of hostile questions to Clement. Among the five, most significantly, was Anthony Kennedy, who increasingly appears to be the Sandra Day O’Connor of this Supreme Court—a more or less conservative swing vote.
Moreover, the questions and comments of five of the eight justices sitting on the case revealed a strong likelihood that the court will disagree with the president’s skewed concept of due process (basic fairness in our rule of law) in inventing these military commissions.
Even more disturbing to the president—if he has the educational background to parse the court’s warnings for the future when it refuses, for the time being, to review a case—is what happened on April 30.
In Jose Padilla v. Hanft, there were not the necessary four votes to hear the case right now, although justices Ginsburg, David Souter, and Stephen Breyer wanted to go ahead in this second appearance before the court by Padilla.
But very significantly, in a concurring opinion by John Paul Stevens, Anthony Kennedy (again!), and most notably, Chief Justice Roberts, it became clear that this case is still very much alive, as I’ll show as we go on.
Moreover, a majority of the court ( not Clarence Thomas, Antonin Scalia, and Samuel Alito) signaled a readiness to, in the not so distant future, startle the president by striking down his method of removing terrorism suspects from our system of laws by setting them apart as “enemy combatants” imprisoned in military cells indefinitely, incommunicado, without access to lawyers, and without charges—as he did to Padilla.
On March 8, 2002, I suddenly saw on network television, from Moscow, Attorney General John Ashcroft triumphantly announcing that an American citizen, Jose Padilla, had been captured at O’Hare Airport in Chicago before he could set off a radioactive “dirty bomb.” (Ashcroft did not say “alleged” terrorist and certainly had no thought of invoking the American value of “innocent until proven guilty.”)
Padilla was briefly held to testify before a grand jury but then was summarily transferred to a military brig in South Carolina for more than three years as an “enemy combatant,” without charges and without contact with anyone but guards.
In 2004, the Supreme Court would not hear his case on a technicality, saying his appeal had been filed in the wrong jurisdiction. At last, when the Supreme Court indicated it would consider listening to his appeal, the Bush administration—fearing that, My God, there might be a majority to declare Bush’s “enemy combatant” designation unconstitutional—pulled a not-so-hidden-ball trick.
Pulling Padilla out of the military brig and into our real justice system, the administration filed a mélange of new charges—without any mention of the “radioactive dirty bomb” that John Ashcroft had tried to scare us with. When that happened, a majority of the high court—clearly resentful of the Bush team’s trying to game the system by preventing the court from ruling on the lawfulness of putting people away as “enemy combatants”—decided to hear Padilla once more.
This time, although they decided to hold off on the “enemy combatant” ruling until Padilla goes through our regular courts, a majority of the justices showed they’re aware that even if he is found innocent of the new charges, the administration can still put him into military prison again as an “enemy combatant.”
If this happened to Padilla—warned John Roberts, Anthony Kennedy, and John Paul Stevens in their concurring opinions—the Supreme Court wouldl teach Bush a lesson he and the nation will not forget. Even, therefore, if Padilla is acquitted in a lower civilian court, the often cited Professor Michael Greenberger, director of the University of Maryland’s Center Health and Homeland Security, told National Public Radio:
“I think we’re going to see the end of the use of the enemy combatant status . . . arresting a U.S. citizen in the United States and claiming they can be held incommunicado without contact with the outside world.”
When Padilla first appeared before the Supreme Court two years ago, John Paul Stevens, speaking for justices who wanted to hear his case then, said: “At stake in this case is nothing less than the essence of a free society.” And the then chief justice, William Rehnquist, writing for the majority that dismissed the case on a technicality, spoke for the court, also emphasizing that Padilla’s case was “indisputably of profound importance.” Will somebody try to explain all of this to Bush?